Two items were published this week that brought me away from thinking about documentary film and back to The Rule of the Clan.

The first was a blog post titled “Why Libertarians Should Champion Social Liberty,” by Jerry Taylor of the Niskanen Center. Taylor advances a position that at first glance seems to run counter to core libertarian principles: he argues that “freedom is advanced by [government] preventing private racial discrimination.” This view is anathema to many libertarians, Taylors notes, who believe that government action to prevent private discrimination is “flatly immoral no matter how well-intentioned or worthwhile the consequences might be.”

But Taylor suggests that this is a misunderstanding of the libertarian tradition—one of whose patron saints, John Stuart Mill, had this to say in the first chapter of On Liberty:

Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant—society collectively, over the separate individuals who compose it—its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.

Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

Taylor then goes on to suggest—here’s the kicker—that “Mill’s heir on this matter might well be Mark Weiner.”

Here are three improbable things collected into one audio file: me talking 1) on Austrian radio, 2) in German, and 3) about my latest video project (“Wood, Water, Stone, Sky, Milk”). The program was broadcast recently on “Salzburg Aktuell” on radio ORF.

And while I’m on foreign languages, three nice discussions of The Rule of the Clan appeared recently in Sweden, in Dagens Nyheter, here, and in Svenska Dagbladet: a full review here and a mention here. I’ve been extraordinarily pleased with the attention given to the book there.

Finally, my friend Ulrich Haltern and I recently published an article in the EUtopia Magazine about liberal identity in Europe after the terror attacks in Paris and Copenhagen. We wrote most of the piece back in mid-January, so we’re glad to finally see it available. It was originally written in German, and it reads better in that language, but an English translation is also available.

There’s a symposium this month about The Rule of the Clan on Cato Unbound, the online journal of the Cato Institute. My contribution is now online. In coming days there will responses by Arnold Kling, on March 12; Daniel McCarthy, on March 14; and John Fabian Witt, on March 17. I hope readers will join in the conversation, which promises to be lively and controversial.

In other news, I’ll be speaking tomorrow at Yale Law School beginning at six o’clock, and the paperback of The Rule of the Clan is now available from the good folks at Picador.

“What can the jazz process tell us about life?” That’s the overriding theme of Trading Fours on Blog Talk Radio, hosted by Drs. Jackie Modeste and Wesley J. Watkins, IV.

I had a lively conversation about The Rule of the Clan on the show today, and in keeping with the spirit of Trading Fours—and trading fours—our discussion ranged widely. You can hear the full one-hour show through this media player (or by clicking on the link in the first paragraph):

In the course of our conversation, the three of us had a lively exchange about jazz and democracy I thought worth sharing. Among other things, it seemed like an American version of the discussion I had with Prof. Stefan Kirste about the relation between law and musical aesthetics:

Here’s an excerpt from the conversation, which in the audio file begins at about 33:00:

Me: What liberal government has to sell has to be better than what’s on offer from other social theories.

Jackie: Right.

Me: And if liberal government is working, if it’s corrupt along any lines, certainly those of nepotism, if it’s ineffective, then liberal government deserves to lose. But I don’t think it should. And that’s why I think it’s important to defend central government, to defend modern liberal ideals of robust government capable of vindicating the public interest and thereby liberating individual energy.

Jackie: OK, yes. Yes! So what I’m thinking about is when we—

Me: Jackie, sorry to interrupt you. Something that Wes said … maybe we could play with this a little bit. I’m trying to draw connections to the jazz concerns that you have here on the show. Maybe government is like a band leader. And so if you’re thinking about Duke Ellington, right, and the kind of music that he was able to enable, if you don’t have a good band leader, then someone is going to steal that show and the swing is going to be undermined. I’m not sure if … is that the case in jazz?

This weekend, I began work on my next non-fiction book by giving a talk at an excellent conference hosted by the Telos-Paul Piccone Institute. The title of the conference was “The Difficulty of Democracy: Diagnoses and Prognoses.” I gave the following remarks as part of an evening discussion about “The Individual and the Collective,” which included fellow panelists Ulrike Kistner, Timothy Luke, and Frances Fox Piven (though because of much stimulating back-and-forth, I actually delivered my remarks the following morning). This is what I said:

As the final speaker after a fascinating day of talks, I’ll keep my comments brief. I’ll be addressing two questions about democracy raised by our conference description: first, “the reasons for its rarity and volatility” and, second, “the factors that are essential for its stability.” For each question, I’ll try to provide a concise, mildly provocative answer from my perspective as a writer and scholar about constitutional law and comparative legal history.

So why is democracy so rare and volatile? I think one answer we could give to this question is that democracy is volatile because the modern self is a legal achievement. There is nothing outside of law, including individual subjectivity. Instead, the modern self that lies at the center of liberal democratic practice developed only after a long historical process of dialectical negation and synthesis. In that process, a handful of societies, beginning in western Europe, transcended what in my most recent book I call the “rule of the clan.”

The rule of the clan is a form of governance that unites a radically decentralized constitutional structure with a culture of group honor and shame. In doing so, it makes the extended family the constitutive unit of society, politics and law. Under the rule of the clan, an individual’s legal rights and obligations depend significantly on his or her place within the kin group—his or her “status” within the extended family, to use the language of the nineteenth-century legal historian Henry Maine. As a result, personal autonomy is radically circumscribed, as exemplified by constricted life possibilities for women.

Modern individualism could develop only once central governments were capable of vindicating the public interest over the power of extended families—only once they could supplant the rule of the clan with a form of socio-legal order animated by what Maine called the principle of contract. Modern selfhood requires the existence of public institutions that protect persons as individuals, not as cousins. Thus if we look to the laws of Alfred the Great in Anglo-Saxon England, we see that the public-regarding notion of the King’s peace grew alongside the monarch’s extension of special protection to persons without kin, most notably monks and traveling merchants.

From this historical perspective, individuals didn’t create the state; the state created individuals. In loosely Hegelian terms, the growth of modern subjectivity depended on the development of a neutral state dedicated to principles of universal as opposed to particular altruism. This view naturally cuts against theories of social contract. It also points to some of the challenges democracy faces to its emergence and stability.

Or should that be Lag av klanen? However you say it, The Rule of the Clan has received some attention recently from scholars in Sweden, and I’m really happy about it. Last week Peter Santesson published an article titled “More Independent People” in Axess Magasin, a very thoughtful Swedish journal devoted to public discussion of the liberal arts and social sciences. For the article in Swedish (“Mer självständiga människor”—which just looks so much more exciting), see here. I’m assuming that even in Swedish Santesson’s title refers to the novel Independent Peopleby the Icelandic author Halldór Laxness. That’s marvelous, because I began writing the book in Akureyri, Iceland.

Santesson discusses my book in the course of meditating on the tension he sees in public discourse today between individualism as “personal expression” (the “desire to be unique and achieve self-realization”) and individualism as “autonomy” (the ability to be “independent and able to stand on one’s own feet”). In Santesson’s view: “Autonomy’s value is not often talked about. Individuality as personal expression is, however, highly topical. One wants to be Pippi Longstocking, but is no longer talking about gold money.”

Santesson’s lively and stimulating article seems to have inspired a post on the blog of Swedish writer Dick Erixon. And I’m told by the Swedish journalist Per Brinkemo that the book was helpful to him in thinking about his forthcoming work Between Clan And State: Somalis in Sweden, which will be published in April—and which promises to be excellent.

The Erasmus Law Review has published a special issue on legal pluralism edited by Sanne Taekema of Erasmus Law School in Rotterdam and Wibo van Rossum of the University of Utrecht. I contributed an essay in which I reflect on the intellectual context in which I wrote The Rule of the Clan and try to recuperate a culturalist approach to the study of the rule of law.

The introduction to the issue can be found here. My essay, “Imagining the Rule of Law in Nineteenth-Century Britain: Liberal Society and the Dialectic of the Clan,” can be found here. The links are to the website of international publisher Eleven Journals.

Here’s how my contribution begins:

“In this essay, I provide a historical and theoretical framework for understanding the imaginative relation between the liberal rule of law and the kin-based form of socio-legal organization I call ‘the rule of the clan’ – a classic example of law created ‘from below.’ Specifically, I believe that a culturalist disciplinary perspective reveals that the modern liberal state and its more centralized rule of law always stand in an ironic, dialectical relation to the rule of the clan as a legal form. Liberal society, that is, nurtures itself through an anti-liberal utopian imaginary.

“This article provides an intellectual history backdrop for theorizing that dialectical relationship by examining two contrasting ways in which nineteenth-century British intellectuals imagined the rule of law. Following the work of Charles Taylor and, more specifically in the legal field, Paul Kahn, my goal is to depict a social imaginary of modern liberalism that has been neglected within contemporary liberal theory – and, in doing so, provide a way to appreciate the cultural foundations of liberal legality. The article considers the stories that nineteenth-century British intellectuals told about the relation between the rule of law and the rule of the clan as a way to think about the rule of law today. It thus tacks between three different shores: the world of legal pluralism (the rule of the clan), the world of nineteenth-century British analysis of the rule of the clan and the contemporary relation between culture and modern liberal society.”

I associate the “culturalist approach” to the rule of law with a group of nineteenth-century intellectuals I describe this way: “Writing before the full professionalization of the disciplines, these men forwarded a vibrant if unsystematic form of analysis that sought to describe in precise, anthropological detail the cultural foundations of the new liberal nations they were seeking to wrest into being, and they were attentive to the aesthetic qualities of liberalism and its legal traditions.”

In Britain, the group includes the novelist Walter Scott. Internationally, it includes Domingo Sarmiento in Argentina, Jón Sigurðsson in Iceland, and István Széchenyi in Hungary.

I’ve really enjoyed speaking on the radio about The Rule of the Clan over the past few months. The interviewers have been really sharp and insightful, and it’s been great to have the chance to talk with readers well outside university circles.

I’ve posted links to the interviews as they were broadcast, but I’ve just learned how to embed audio files from external sites into WordPress (better late than never!). And so for ease of use, I’ll make them available again here, all in one place. To listen, just click on one of the audio players below.

Unfortunately, my hour-long interview with The Kathleen Dunn Show on Wisconsin Public Radio can’t be embedded into WordPress. If you’d like to listen, click here for the audio file. And if you’d like to watch a lecture I gave at BYU in 2012 about the book’s national security implications, click here.

I’ve also held an online interview Deven Desai of the blog Concurring Opinions: here.

From July 22-26, the blog Concurring Opinions will host an on-line symposium about The Rule of the Clan, moderated by Deven Desai. All readers are warmly invited to take part in what I’m sure will be a stimulating, wide-ranging discussion. I’m grateful already to my valued friends and readers in Khyber Pakhtunkhwa in Pakistan for their interest contributing—if you’re able, I’ll be delighted to have you be a part of our conversation.

The dedicated commentators of the symposium come from a wide variety of intellectual backgrounds—and they’re terrific. They are: